ADARSH JOSHI Vs. TAJEEM HUSSAIN

JUDGEMENT

(1.) Heard learned counsel for the petitioner and perused the material on record. By means of this application, the applicant has prayed to quash the summoning order dated 13.10.2009 as well as the further proceedings of Criminal Case No.1638 of 2009, Tajeem Hussain Vs. Adarsh Joshi & another, pending in the court of J.M., Haldwani u/s 138 of the Negotiable Instruments Act, 1881 (in short the Act).

(2.) As per the complaint, the petitioners gave a Cheque No.037069 dated 15.7.09 for Rs.1.50 lacs of MBPG Campus, Haldwani to the complainant/respondent in lieu of repayment of loan taken by them from the complainant. When the said cheque was presented in the bank, it was returned on 24.7.2009 with the endorsement by the bank having insufficient funds. On 11.8.2009, the notice was sent by the complainant through his advocate by registered A.D. but that was refused to be accepted by the petitioner Adarsh Joshi, however notice was served sufficiently upon the petitioner Alok Joshi. Even then the payment of cheque was not made to the compliant. Hence the complaint was filed on 16.9.2009. The complainant/respondent in support of his case filed his own affidavit while in the documentary evidence, he brought on record the original cheque, copy of notice, bank memo, copy of registry and the notice given to the petitioner Alok Joshi as well as the envelope returned back in respect of petitioner Adarsh Joshi, before the trial court in support of his case. Considering the entire facts and circumstances of the case, the court below proceeded to summon the petitioner u/s 138 of the Act vide order dated 13.10.2009. Hence, this petition.

(3.) Learned counsel for the petitioner submitted that the court below erred in summoning the petitioner. I do not find any force in this argument. In the present case, the cheque was issued on 15.7.2009 and it was deposited in the bank for payment on 22.7.2009 and on 24.7.2009 it was dishonored having insufficient funds. Thereafter, the notice was issued by the respondent through his advocate to the petitioners on 11.8.2009, which was also duly served upon the petitioner Alok Joshi on but the petitioner Adarsh Joshi refused to accept the same. However, even then the payment was not made to the respondent and ultimately on 16.9.2009, the complaint was filed by the complainant in the court. As such, the requirement of Section 138 has been made without their being any inordinate delay. Therefore, the offence punishable u/s 138 of the Act prima facie made out against the petitioner at this stage.